State v. Zuck
| Decision Date | 25 May 2021 |
| Docket Number | No. 2 CA-CR 2019-0130,2 CA-CR 2019-0130 |
| Parties | THE STATE OF ARIZONA, Appellee, v. SHANNON PAUL ZUCK, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
The Honorable Javier Chon-Lopez, Judge
The Honorable Michael Butler, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
By Linley Wilson, Deputy Solicitor General/Section Chief of Criminal
Appeals, Phoenix
Counsel for Appellee
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISIONVice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred.
¶1 Shannon Zuck appeals from his convictions and sentences for sexual exploitation of a minor under fifteen, challenging the trial court's denial of his motions to suppress evidence gained through disclosure of identifying information by an internet service provider and an ensuing search warrant, and a jury instruction permitting the jury to infer the minority of the exploited children. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Zuck. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In September 2013, a Tucson police detective was monitoring a law-enforcement computer application named Roundup,1 and found that a child pornography file "had been downloaded from a specific IP address" over a peer-to-peer network. Having verified that the file portrayed child pornography, police officers obtained subpoenas for Cox Communications, seeking the subscriber information related to the IP address, which included the subscriber's home address.2 Cox complied, informing police that the IP address was assigned to J.P., who was Zuck's mother.
¶3 The officers surveilled the subscriber's home to ensure any wireless network was secured, that is that the computer associated with theillicit file was at that address. Once they had concluded there was no unsecured network, the officers applied for and were granted a warrant to search the residence for devices able to store child pornography, other related devices, and evidence of who resided at the home.
¶4 At the residence, the officers found a laptop and a thumb drive. Zuck admitted he had used the laptop and provided storage locations of the illicit files, along with passwords necessary to access them. Zuck also admitted he had been "downloading child pornography for . . . two years." Police ultimately confirmed child pornography was stored on the thumb drive, and had been stored and viewed on the laptop.
¶5 Zuck was initially charged with ten counts of sexual exploitation of a minor under fifteen, but was convicted of six. For each count, he was sentenced to a consecutive term of twenty-five years of imprisonment, totaling 150 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6 Zuck claims the trial court erred in denying his motions to suppress because the search warrant for his residence was "based on an affidavit . . . containing misleading, inaccurate[, stale,] and illegally-obtained information" and was not supported by probable cause, and a grand jury subpoena was unlawfully used to obtain the internet subscriber information related to his residence. He also argues the court erred by denying a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), "fail[ing] to find that a person in Arizona has a constitutionally-protected reasonable expectation of privacy-by-anonymity to connect to the internet in the home through an anonymous public IP address," and instructing the jury that it was entitled to infer that the illicit images and videos at issue depicted actual minors. We address Zuck's arguments in the order he presents them.
¶7 Zuck first argues the trial court erred in instructing the jury it was entitled to "draw the inference that a participant was a minor if the visual depiction or live act through its title, text or visual representation depicted the participant as a minor," pursuant to A.R.S. § 13-3556. We conclude that, even assuming the court erred in giving the instruction, any such error would have been harmless.
¶8 Section 13-3556 provides that "[i]n a prosecution relating to the sexual exploitation of children, the trier of fact may draw the inference that a participant is a minor if the visual depiction or live act through its title, text or visual representation depicts the participant as a minor." In State v. Hazlett, 205 Ariz. 523, n.10 (App. 2003), another department of this court concluded § 13-3556 "permit[s] a prosecution and conviction where no actual child was involved in the material or live act." And, in the same footnote, Hazlett "holds" that § 13-3556 "falls afoul" of the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 257-58 (2002), which concluded a similar federal statute was an overbroad regulation of speech violating the First Amendment. 205 Ariz. 523, ¶ 6 & n.10.
¶9 At trial, citing Hazlett, Zuck requested the jury be instructed that it was not permitted to merely infer that the images and videos at issue portrayed actual minors. The trial court ultimately denied this request, and instructed the jury, nearly verbatim, with the language of § 13-3556. It reasoned that, despite Hazlett, the legislature had not repealed that section, and whether it should be the basis for a jury instruction "is for people other than me to determine."3
¶10 On appeal, Zuck contends § 13-3556 is unconstitutional and the trial court erred in giving an instruction based on it. He further claims that because of the instruction, the jury was allowed "to find the 'victim' element [of sexual exploitation of a minor] without evidence," meriting reversal. The state responds that any error resulting from the instruction was harmless. Specifically, it points to other instructions, a juror's question, and statements made in closing arguments to support its claim that the jurors understood the images and videos at issue portrayed actual minors. In short, the state contends the evidence presented clearly proved the images and videos depicted actual minors.
¶11 We review a statute's constitutionality de novo. See State v. Arevalo, 249 Ariz. 370, ¶ 9 (2020). "An act of the legislature is presumed constitutional, and where there is a reasonable, even though debatable, basis for enactment of the statute, the act will be upheld unless it is clearly unconstitutional." Id. ¶ 9 (quoting State v. Ramos, 133 Ariz. 4, 6 (1982)). Thus, if possible, we interpret a statute in favor of its constitutionality. Seeid. And, a party asserting that a statute is unconstitutional must overcome "a strong presumption in favor of a statute's constitutionality." Id.
¶12 In this instance, however, we need not address the constitutionality of § 13-3556.4 Even assuming the trial court erred by giving the instruction, the error was harmless in light of the strength of the evidence that each image depicted an actual minor.5 Notably, while testifying about the software and procedures used to track the initial illicit image to Zuck's computer, one of the detectives—who had been involved in "upwards of 500" child pornography investigations—explained he had been "told to review the image[s] to make sure that [they] . . . depict[ed] a minor that is illegal" in the given jurisdiction. Another detective—the lead detective on the case—testified he had reviewed "the file to confirm that it actually was child pornography that had been downloaded." Further, after being instructed on the state's burden of proving that each image and video portrayed an "actual child under the age of fifteen years," the jury was presented with and able to inspect each illicit image and video for itself. And, in response to viewing one of the videos, a jury question was submitted asking one of the investigating officers, a digital forensic examiner assigned to the crime laboratory, with extensive experience in child pornography investigations, to "explain how [he] knew the female was less than fifteen years old." The officer explained the criteria detectives employ in determining whether an image shows a girl younger than fifteen, including analysis of hip development, vaginal-area development, pubic hair and breast development.
¶13 Additionally, Zuck plainly admitted to police that he had been downloading child pornography for two years, focusing on material involving girls between eight and twelve years old. Given Zuck's experience and specified preference, reasonable jurors could consider his statements to be relevant in determining whether actual minors were depicted. See Ariz. R. Evid. 401(a) ().
¶14 Thus, even assuming the jury was improperly allowed to infer that the images portrayed actual minors, no reasonable jury would have been able to conclude the media at issue did not portray actual minors. Cf. Dann, 205 Ariz. 557, ¶ 18 (). Therefore, the state has met its burden and demonstrated that any error would not have contributed to the verdict.
¶15 Zuck also argues the trial court erred in denying his first motion to suppress evidence, claiming the state unlawfully used grand jury subpoenas to obtain information from the internet service provider. He further...
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